An uneasy union: when it comes to marriage & divorce israel isa theocracy under the control of its orthodox rabbinate.what can be done?

Author:Prince-gibson, Eetta
Position:THE THEOCRACY IN DEMOCRACY PROJECT
 
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To all appearances, the Lavies are a normal, middle-class, non-religious family, struggling with the high cost of Israeli living and the day-to-day demands of raising four young children. The kitchen counters of their modest third-floor apartment in Giv'on HaHadasha near Jerusalem are covered with the clutter of a weeknight, the supper dishes draining next to the sink. The refrigerator doors are plastered with magnets holding down bills to be paid, school schedules and reminders of appointments and events. Two daughters, ages seven and nine, are playing in the living room while the younger children, both boys, are already asleep.

But although they have been together for more than a decade and very much want to marry, Shlomit, 42, and Alon, 40, have been unable to do so. Shlomit is a widow, and in the eyes of Israel's Orthodox rabbinate--which has sole authority over all matters of marriage and divorce in the country--she has not been free to remarry.

This is a consequence of a law in Deuteronomy that applies to all marriages between Jews. It stipulates that the late husband's unmarried brother must marry the widow in order to produce a child who will carry on the name of the deceased. If the brother doesn't want to marry his sister-in-law, he must stand before the elders of the com-munity--which in modern Israel means the rabbinate--and announce: "I will not marry her." The woman then performs a ceremony called halitzah by taking off her brother-in-law's shoe, spitting in front of his face, and loudly declaring, "So shall be done to a man who refuses to build up his brother's house."

Shlomit, like most secular Jews, had never heard of this law. Since there aren't many widows of childbearing age who have no children and an unmarried brother-in-law, it is seldom relevant, and when it is, it's usually a technicality. But for Shlomit it was not that simple: Her brother-in-law, who lives in Canada, refused to take part in the ceremony. When summoned by the rabbinical court, he rarely appeared, and when he did, he demanded large sums of money in exchange for "permitting" Shlomit to perform the ceremony.

In essence this has meant that her late husband's family has had the power to prevent Shlomit from remarrying. "The law of halitzah may have had some meaning in ancient times, but now it was just being used as a tool against me," says Shlomit, a soft spoken, petite woman with olive skin and thick black hair that is tied back. "And the rabbis were allowing it to happen." The rabbis, she says, advised her to give her brother-in-law the money so that she could be free. "I don't have that kind of money," she says. "But the rabbis told me that my husband's soul will never find rest and that it's my fault."

Some time after her husband's death, Shlomit met and fell in love with Mon. "Neither of us was so young anymore," she says. "We wanted to get married, but we realized that if we would wait for the rabbinical courts, we'd be too old to have children of our own." Without recourse, she formally took Alon's surname, and the two lived as a couple and became a family when the children were born.

Halitzah applies to any Jewish woman anywhere in the world, but as long as civil marriage is an option, a widow can choose to ignore the religious injunctions and remarry. In Israel, a rare democracy that legally sanctions a religious monopoly over marriage and divorce, this is impossible. When a Jewish couple walks into a government office to obtain a marriage license, it is supervised by rabbis and run according to Orthodox interpretation of traditional Jewish law, known as halacha. According to Hiddush, an Israeli non-governmental organization (NGO) working toward religious pluralism, Israel--regarded as the Middle East's only democracy--is among 45 nations with "severe restrictions" on marriage; most of the others are governed by Islamic law. This places the Jewish state in the dubious company of nations such as Afghanistan, Iran, Pakistan, Saudi Arabia and Sudan.

The chief rabbinate, which falls under the jurisdiction of Israel's Ministry of Religious Services, maintains and supervises a massive religious government bureaucracy made up of a network of rabbinic courts consisting of regional, municipal, community and neighborhood rabbis. In addition to marriage and divorce, the rabbinate is responsible for all "personal status" issues, such as conversion, which is closely related to marriage; burial; kashrut certification; supervision of ritual baths and other religious services.

Over the decades, the Knesset, civil courts and Israel's Supreme Court have created options for couples who are willing to forego official Jewish marriage. Chief among these is a 1963 law stipulating that marriages performed outside of Israel must be recognized by the state. Many Israelis with the necessary resources take advantage of this. In 2010, nearly 36,000 couples were married in Jewish courts, and another 9,262 couples had weddings abroad, according to Israel's most recent census. And in recent decades, the courts have strengthened the rights of common-law couples so that they can maintain joint bank accounts, both be recognized as parents of their children, and be eligible for all social security and social welfare benefits and inheritance privileges to which a married couple would be entitled. Nevertheless, the vast majority of people in Israel--such as the Lavies--want their unions to be recognized by the state as marriages.

"Israeli society is much more traditional than would appear," says Aviad HaCohen, dean of the Shaarei Mishpat Academic College and a senior lecturer in constitutional law and Jewish law at the college and in the Hebrew University's Faculty of Law. "Except for a small minority, most Israelis want to marry 'like their parents did.' Others, even if less traditional, don't want to upset their grandparents and parents."

Israel's religious laws date back to the medieval rise of the Ottomans, whose millet system granted limited authority to each recognized non-Muslim minority to conduct their own religious and communal affairs. After World War I, the British kept the system in place and appointed Orthodox rabbis to act as the supreme halachic and spiritual authority for the Jewish people in Palestine. In 1947, before the British pulled out and Jewish State was established, future Prime Minister David Ben-Gurion made what is known as the "Status Quo Agreement." Under this agreement, he made concessions to the religious parties, including recognition of the authority of the chief rabbi and rabbinical courts.

In 1953, the Knesset passed legislation that reinforced this faith-based system by clearly placing all matters of marriage and divorce for Jews in Israel under the jurisdiction of these rabbinic courts. Religious leaders became civil servants--even if they perceived themselves as answering to a higher authority. And to this day, religious court verdicts, like civil ones, are implemented and enforced by the police, bailiff's office, and other law-enforcement agencies.

Why did Ben-Gurion, an avowedly secular Zionist, push so strongly for the Status Quo Agreement and the subsequent 1953 legislation? And why was there so little opposition to these decisions?

There are many reasons. One that historians such as Anita Shapira, author of the 2012 book Israel: A History, have pointed to is Ben-Gurion's assumption that ultra-Orthodox Jewry was on its last legs and would eventually disappear or become a small, insignificant sect. A second reason was timing, says Guy Ben-Porat, a professor of public policy at Ben-Gurion University of the Negev and author of the recent book, Between State and Synagogue, the Secularization of Contemporary Israel. "These were the years just after the Holocaust and the loss of fully one-third of the Jewish people," he says. "Most of even the most secular Jews felt a pull toward tradition, toward the sense that the Jewish people had to maintain itself and hold on to what had been lost."

But mostly the decision came down to politics--counting who was for and who was against establishment of the Jewish State. Although small in size, the religious parties held the balance of political power at the time, and Ben-Gurion wanted the state to have the legitimacy of Orthodox backing. "Ben-Gurion needed their support in order to guarantee the establishment of the State, and he knew that the religious parties were never going to give up on the crucial issue of marriage and divorce, which throughout the millennia [in exile] had been the sole province of the rabbis," says Ben-Porat.

Pnina Lahav, professor of law at Boston University and an expert on women's rights in the early period of the state of Israel, suspects there was another reason. "On the one hand the early Zionists rejected religion and on the on the other hand they had traditional views about marriage," she says. "It was something akin to the current concept of 'family values' in the United States."

Ben-Gurion--who married his wife, Paula, in a civil ceremony in New York City that was squeezed into his schedule...

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